Terms of Sale

NOTICE TO CUSTOMER: United States Endoscopy Group, Inc. d/b/a US Endoscopy ("Seller") hereby certifies that these goods were produced in compliance with all applicable requirements of Sections 6, 7, and 12 of the Fair Labor Standards Act, as amended, and of regulations and orders of the U.S. Department of Labor issued under Section 14 thereof.

I. Offer and Acceptance
A. The Seller's electronic commerce website (the “Website”) is available for domestic (US) orders only. If the Website is unavailable, Customer may use other means of commerce communication already established until the Website is available again.

B. The terms and conditions of sale set forth in this document ("Seller's Terms”) will apply to all Products sold or provided by Seller.

C. Customer will submit an electronic Purchase Order (the offer) identifying the quantity of Products that it intends to purchase at the price specified on the Website, subject to Seller’s Terms.

D. Seller may accept or reject the Offer in its entirety, or at the line item level, resulting in a contract for the purchase of the Products at the price specified in the Offer.

E. Any form of acceptance issued by Seller will result in a contract for the purchase of the Products at the price specified in the Offer. Customer will be deemed to have accepted any of Seller's Terms to which Customer has not specifically objected. Customer will be required to set forth each objection to Seller's Terms in writing, signed and dated by Customer and delivered to Seller prior to or contemporaneous with Seller's form of acceptance.

F. Seller's failure to object to provisions in any communication from Customer (including, without limitation, penalty clauses of any kind), will not be a waiver of Seller's Terms, nor an acceptance by Seller of any such provisions. Any terms in Customer's document of purchase order that are different from or additional to Seller's Terms are hereby rejected unless specifically accepted by Seller in a separate document signed by both Customer and Seller, regardless of whether such other terms would materially alter the terms hereof. No course of dealing, custom or usage, which is contrary to Seller's Terms will apply.

G. Seller reserves the right to correct any typographical or clerical errors in prices, specifications, or acknowledgments.

II. Products or Services Subject to Sale
The Products subject to this sale will be limited to those described on the Website. They do not include, and Customer assumes responsibility for, training related to the proper use of the Products.

III. Financial Condition
At Seller's request, Customer will furnish sufficient information to enable Seller to assess Customer's creditworthiness. Seller may, in its discretion, require full or partial payment in advance.

IV. Prices

A. Prices are subject to change without prior notification.

B. Prices are based on U.S. dollars and are F.O.B. point of shipment. Prices do not include freight or delivery charges or taxes (sales, excise, use, ad valorem, etc.) or any export or import duties. Those charges may be prepaid by Seller and added to Customer's invoice.

V. Shipment, Delivery, and Inspection
A. Seller will select the method and carrier for delivery of all Products. Title and risk of loss or damage to the Products will pass from Seller to Customer upon delivery to a carrier at point of shipment.

B. Any shipment, delivery, or performance date stated in the Offer or other contract document is approximate only and does not constitute any guarantee of shipment, delivery, or performance on any particular date..

C. Time will not be of the essence of this agreement.

VI. Payments, Title and Security Interest
A. All payments will be made at the time of sale, or if the purchase is made through a purchase order, within 30 days of the date of Seller’s invoice. All payments will be in United States currency and will be without deductions for back-charges, other accounts between Seller and Customer, and the like, which will be settled independently of the payment of the invoice. Payment will not prejudice claims on account of omissions or shortages in shipment, but no such claim will be allowed unless made within 96 hours after receipt of the applicable shipment by Customer.

B. Should Customer delay payment beyond the date it is due, interest may be charged on the unpaid balance at the rate of one and one-half (1-1/2%) percent per month.

VII. Delays
A. Seller will not be liable for loss, damages, or non-performance resulting from changes in specifications, force majeure, including but not limited to strikes, labor disturbances, material shortages, non-manufacturing conditions, delays or failures of carriers or communication, epidemics, fire flood, storms, accident, riot, acts of terrorism, war and invasion, governmental requisition or priorities, acts of God, or other causes beyond Seller’s reasonable control.
B. In such event, the delivery date will be extended for a period equal to the time lost by reason thereof, or Seller at its option may cancel the delivery and refund any amounts paid by Customer, as Customer’s sole and exclusive remedy. Seller will undertake to notify the Customer promptly of any significant delay and will specify the revised delivery date as soon as practical. IN NO EVENT WILL SELLER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES RISING OUT OF A DELAY IN, CANCELLATION OF, OR FAILURE TO DELIVER OR MANUFACTURE.

C. If shipment is delayed or extended by Customer, Customer will arrange for and notify Seller of the place or places to which Seller will ship the Products covered by the order for warehousing or storage at Customer’s expense and all risk of loss or damage to the Products or Services will be borne by Customer. If Customer is unwilling or unable to promptly arrange for warehousing or storage facility, Seller may do so at Customer’s expense. Customer hereby agrees to pay any and all storage charges so incurred and Seller’s invoice, which it will issue upon shipment of Products to the place of storage.

VIII. Cancellation
Cancellation or suspension of the order by Customer after acceptance by Seller may be made only on terms which will compensate Seller for loss due to the cancellation. Prior to shipment, Customer may cancel by giving written notice of cancellation to Seller. Customer may cancel after shipment only if Products are re-salable and Customer pays restocking, shipping and handling charges as reasonably determined by Seller.

IX. Product Design
Seller reserves the right to make changes and improvements in the design and specifications of its Products without notice or obligation to Customer.

X. Warranty and Disclaimers
A. Seller warrants that the Products comply with Seller's specifications. This warranty will run for a period of 90 days from the date of shipment, unless the Product is subject to an expiration date, in which case, the expiration date will apply. Seller's warranties do not apply to damage resulting from unauthorized installation, accident, casualty, alteration, misuse, or failure to follow seller’s written instructions. ENTIRE WARRANTY: SELLER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND SELLER EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND ALL OTHER WARRANTIES ARE HEREBY EXPRESSLY EXCLUDED. SELLER WILL HAVE NO OTHER LIABILITY, DIRECT OR INDIRECT, OF ANY KIND, INCLUDING LIABILITY FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES.

B. Customer’s sole and exclusive remedy for breach of the foregoing warranties will be the repair or replacement of the defective Product, or, at the Seller’s option, a refund of the purchase price; provided: (1) the Product has not been altered or modified by other than Seller, (2) it has been properly stored, installed, maintained and operated within the limits specified by Seller, and (3) Customer promptly sends to Seller notice of defect and satisfactory proof thereof, including allowing Seller the opportunity to inspect the Products, and in the event of repair or replacement, returns the product to Seller, freight prepaid. Defective Products replaced by Seller will become the property of the Seller. Repaired or replacement parts will be shipped to the Customer FOB point of shipment.

C. If the Product sold is not manufactured by Seller, Seller will extend to the Customer the same warranty protection Seller received from the original manufacturer.

D. Seller is not responsible for any charges relating to Product replacement that have not been authorized by Seller in writing.

E. NEITHER SELLER NOR CUSTOMER WILL BE LIABLE TO THE OTHER FOR SPECIAL OR CONSEQUENTIAL DAMAGES OR FOR DAMAGES FOR LOSS OF USE ARISING DIRECTLY OR INDIRECTLY FROM ANY BREACH OF CONTRACT, MATERIAL OR OTHERWISE, OR FROM ANY TORTIOUS ACTS OR OMISSIONS OF THEIR RESPECTIVE EMPLOYEES OR AGENTS, AND IN NO EVENT WILL THE LIABILITY OF SELLER EXCEED THE PRICE OF THE DEFECTIVE PRODUCT OR OF THE PRODUCT SUBJECT TO LATE DELIVERY. If Seller, without separate compensation therefor, furnishes the Customer with advice or other assistance concerning any Product supplied hereunder or any system or equipment in which any such Product may be used which is not required hereunder, the furnishing of such advice or assistance will not subject Seller to any liability whether in contract, tort (including negligence and strict liability) or otherwise.

XI. Patents, Trademarks, Copyrights, and Software
A. Seller warrants that Products will be delivered free of any rightful claim for infringement of any United States patent, trademark or copyright.

B. If Seller is notified promptly in writing of any claim of infringement, Seller will defend or may settle at its expense any such claim. Seller will pay all damages and costs awarded against Customer due to breach of this warranty; provided, however, that Customer must cooperate with Seller in the defense of any claim. Seller will, at its expense and option, either procure for the Customer the right to continue using any infringing Products, or replace or modify them so they become non-infringing, or remove the Products and refund the purchase price. The foregoing states the entire liability of Seller for patent, trademark, or copyright infringement by Products or any part thereof.

C. The preceding representations will not apply to any use of any Product furnished hereunder in conjunction with any other item in a combination not furnished by Seller as a part of this transaction. As to any such item, part, or use in such combination, Seller will have no liability whatsoever for patent, trademark or copyright infringement and Customer will indemnify Seller and hold Seller harmless against any claims, liability, damages or expenses, including reasonable attorney fees, as a result of infringement claims arising therefrom.

XII. Disclosure Information
Any information, suggestions or ideas given by the Customer to Seller in connection with Seller's performance hereunder are not secret or submitted in confidence, except as may be otherwise provided in writing, signed by Seller.

XIII. Assignment
No right accruing to the Customer by virtue of the manufacturer/purchaser relationship between Seller and the Customer nor any duty of Seller resulting from that relationship will be assignable without Seller's prior written consent.

XIV. Severability
Invalidity of any provision of Seller's Terms will not affect the validity of any other provision hereof and any invalid provision will be severed from the valid provisions.

XV. Non-Waiver
No failure by Seller to exercise any right accruing to it by virtue of the manufacturer/purchaser relationship or under any contract of sales entered into with the Customer will operate as a waiver thereof or preclude the exercise of any other right or privilege by Seller.

XVI. Notice
Any notice required or contemplated hereunder will be in writing and will be delivered personally or sent by telefax or by prepaid registered mail. Notice by telefax will be deemed to have been received when transmitted and any notice sent by registered mail will be deemed to have been received on the second day following the date mailed.

XVII. Entire Agreement and Amendments
There are no other Terms and Conditions applicable to the purchase and sales of Seller's Products other than those contained in the Offer (including any specifications or other documents incorporated by reference in the Offer). No modification, amendment, waiver or other change of any provision of Seller's Terms will be binding on Seller without Seller's written consent.

XVIII. Limitations of Actions
Any action for a breach of contract arising out of Seller's acceptance of Customer's order or arising out of Customer's acceptance of Product supplied must be commenced within one year after the cause of action has accrued.

XIX. Governing Laws; Remedies
A. The rights and obligations of the Customer and Seller, and the construction and effect of any contract formed between them will be governed by the laws of the State of Ohio.

B. If the Customer fails to fulfill their terms of payment of any invoice or if the financial or business condition or responsibility of the Customer will become impaired or unsatisfactory to the Seller, Seller may, without liability to Customer or prejudice to any other legal or equitable remedy, suspend performance until past due payments are made and satisfactory assurance of payment is received.

XX. Operating Directions
A. Customer will comply with and require its agents and employees to comply with all directions, safety notices, warnings, and other instructions furnished by Seller, and will use and require its agents and employees to use reasonable care in the use of the Products.

B. SELLER WILL HAVE NO OBLIGATION OR LIABILITY FOR ANY FAILURE OF CUSTOMER, CUSTOMER’S EMPLOYEES, AGENTS, OR ANY THIRD PARTY TO OBSERVE THE PROVISIONS OF THIS SECTION, OR FOR ANY INJURY OR DAMAGE CAUSED, IN WHOLE OR IN PART, BY CUSTOMER'S FAILURE TO COMPLY WITH APPLICABLE FEDERAL, STATE, OR LOCAL SAFETY REQUIREMENTS AND CUSTOMER WILL INDEMNIFY AND HOLD SELLER HARMLESS FOR ANY CLAIMS, LIABILITIES OR LOSSES ARISING OUT OF OR IN CONNECTION WITH ANY SUCH INJURY OR DAMAGE OR CLAIM THEREOF.